Justice Reinvestment Initiative (2013 HB 2170)

HB 2170 FAQ

The HB 2170 Subcommittee of the Kansas Sentencing Commission meets periodically to discuss the legal and practical issues pertaining to HB 2170. The subcommittee consists of a district judge, a defense attorney, a district attorney, a member of the Attorney General’s office, one Republican and one Democrat Representative of the Kansas House of Representatives, general counsel and the Secretary of the Department of Corrections, counsel for the Sentencing Commission, a community corrections director and a court services specialist. Any information presented in the following FAQ represents the majority opinion of the HB 2170 Subcommittee.

Please check back often, this list of questions and answers will be updated frequently as new issues arise. If you have questions that are not addressed in the FAQ, please feel free to contact office@sentencing.ks.gov.

*References to the 2013 Supplement of the Kansas Statutes Annotated (K.S.A.) are made with the assumption that these sections will appear as amended in the enrolled version of HB 2170 when they are published later in the year.

Upon the first felony probation violation, the violator will be subject to a “quick dip” intermediate jail sanction pursuant K.S.A. 2016 Supp. 22-3716 (c)(1)(B). The quick dip can be imposed as two-day or three-day consecutive periods. There is no limit to how many times a quick dip sanction may be imposed, but an offender may not serve more than 18 total days of quick dip confinement in a single term of supervision. See K.S.A. 22-3716(b)(3)(B)(II); (b)(4)(A) and (c)(1)(B).

Court Services Officers or Community Corrections Officers also have the authority to impose a “quick dip” sanction pursuant to K.S.A. 2016 Supp. 21-6604(s) or (t) so long as the sentencing judge has not withheld this authority at sentencing and the offender has not refused to waive the right to a violation hearing. See K.S.A. 2016 Supp. 22-3716(b)(4)(A) & (B); K.S.A. 2016 Supp. 22-3716(c)(1)(B) & (C). The CSO/CCO should obtain a signed statement of the defendant's acknowledgement of the quick dip sanction and waiver of the right to a violation hearing. (See sample of waiver form).

After a quick dip sanction has been imposed by either the court or the CSO or CCO, the court may impose a 120-day sanction under K.S.A. 2016 Supp. 22-3716 (c)(1)(C) or a 180-day sanction under (c)(1)(D), up to one time each, for subsequent felony probation violations. K.S.A. 2016 Supp. 22-3716(c)(1)(D).

After a prison sanction has been imposed pursuant to K.S.A. 2016 Supp. 22-3716 (c)(1)(C), (c)(1)(D), or both, the court may then revoke probation pursuant to (c)(1)(E). The court may also revoke pursuant to K.S.A. 2016 Supp. 22-3716 (c)(8), regardless of any prior sanctions imposed, if the probationer commits a crime or absconds from supervision. The court may also use the override provisions of K.S.A. 2016 Supp. 22-3716(c)(9) to bypass the graduated sanction progression and revoke the violator’s probation at any time if the court sets forth with particularity the reasons for finding that public safety will be jeopardized or the welfare of the offender will not be served by another sanction.

Quick dips are an integral part of the new graduated sanctions and strategies that will have a greater impact on reducing offender recidivism in Kansas.

Research has shown that one of the most effective ways to change offender behavior is to use swift and certain responses that can be quickly applied by supervision officers. The quicker punishments can be handed down, the more effective they can be in changing probationer behavior. The short jail stays are more cost-effective and cause less disruption to an offender’s pro-social network than a lengthy jail or prison sentence.

According to K.S.A. 22-3716(b)(4), if a defendant waives the right to a hearing and the sentencing court has not specifically withheld authority, a CSO or CCO may impose a 2-day or 3-day quick dip jail sanction. The CSO or CCO must have the authorization of the Chief CSO or Community Corrections Director. Presently, it is up to each judicial district to develop their own workable system. Written authority in some form would most likely be a preferred method for documentation purposes.

K.S.A. 22-3716(b)(3)(B)(i) & (ii) permit the court or supervising officer to impose a 2-day or 3-day quick dip sanction on an offender convicted or a misdemeanor or nongrid felony. However, these offenders are NOT eligible to receive a 120-day or 180-day sanction.

Yes. The sanctions in K.S.A. 2013 Supp. 22-3716 (c)(1)(C) and (c)(1)(D) can be imposed upon felony probationers one time each, in any order, during a single probation sentence. These sanctions cannot be imposed at the same time or “stacked” to create a 300-day sanction.

After one prison sanction under (c)(1)(C) AND one prison sanction under (c)(1)(D) have been imposed, the court must then revoke probation pursuant to (c)(1)(E).

Pursuant to K.S.A. 22-3716(f), for crimes committed on or after July 1, 2013, a felony offender whose nonprison sanction is revoked pursuant to subsection (c) or whose underlying prison term expires while serving a sanction pursuant to subsection (c)(1)(C) or (c)(1)(D) shall serve a period of postrelease supervision upon the completion of the prison portion of the underlying sentence.

NO- If the defendant is awaiting the judge to make the ruling he/she must serve the sanction.
YES- If judge has imposed the sanction and defendant is awaiting transport to DOC.

Example 1: Defendant was arrested on Monday for a violation of probation. The judge cannot hear the motion hearing until the following Monday (defendant is in county jail for 7 days awaiting the hearing). No credit toward the defendant's sanction will be given. However, those seven days can be counted as jail credit for the underlying sentence. See K.S.A. 22-3716(c)(1)(C): The sanction imposed pursuant to this subparagraph shall begin UPON PRONOUNCEMENT by the court and SHALL NOT be served prior confinement credit except... see Example 2.

Example 2: Judge on Monday determines sanction must be served. Defendant waits until Saturday in county jail awaiting transport to a DOC facility. Defendant will receive credit on the sanction of the 5 days awaiting transport. This time is credited. Because PRONOUNCEMENT from the court has been done... Judge imposed the sanction.

No. A graduated sanction may be imposed only once per violation, regardless of whether the offender is serving multiple concurrent or consecutive periods of probation.

In State v. Petz, 27 Kan.App.2d 805 (2000), the Kansas Court of Appeals concluded that the sentencing court may not increase the period of time of confinement in a county jail as a condition of probation beyond the statutory limit by granting multiple probations on a multicount complaint and requiring a defendant to serve consecutive 30-day jail terms on each count. Extending this logic to the new violation sanctions, the court or CSO/CCO may not use the fact that the probationer is serving probation for multiple counts to extend a quick dip or prison sanction beyond what is statutorily authorized in K.S.A. 2013 Supp. 22-3716(c)(1)(B), (c)(1)(C) or (c)(1)(D).

EXAMPLE: Defendant is on probation for two cases. Revocation requested due to the fact the defendant:

Was late to three appointments

Had a positive UA

Has paid nothing on cases

The court cannot:

Give a 2-day sanction on each violation totaling 6 days.

Give a 2-day sanction on EACH CASE totaling 4 days.

Defendant for these violations on these cases can get a 2-day sanction or 3-day sanction total.

No. If the probationer refuses to waive the hearing, the CSO or CCO cannot impose the “quick dip” sanction without further court order and the court will be limited to imposing the quick dip sanction for the first violation. See K.S.A. 2016 Supp. 21-6604(s) and (t), and K.S.A. 2016 Supp. 22-3716(c)(1)(B).

The court may use the override provisions of K.S.A. 22-3716(c)(8) & (c)(9) to bypass the graduated sanction progression and revoke the violator’s probation if the defendant has committed a new felony, absconds or the court determines is a danger to the comunity or in the best interest of the offender. However, the court may not use (c)(8) & (c)(9) to bypass the “quick dip” if they do not fit the criteria and go directly to the 120-day, (c)(1)(C), or 180-day, (c)(1)(D), sanction.

After a prison sanction has been imposed pursuant to K.S.A. 2016 22-3716(c)(1)(C), (c)(1)(D), or both the court may n revoke probation pursuant to (c)(1)(E). The court may also revoke pursuant to K.S.A. 2016 Supp. 22-3716(c)(8) regardless of any prior sanctions imposed, if the probation commits a new crime, or absconds from supervision.

Additionally, the court may bypass the graduated sanction progression and revoke the violator's probation at any time pursuant to K.S.A. 2016 Supp. 22-3716(c)(9), if the court sets forth with particularity the reasons for finding that public safety will be jeopardized or the welfare of the offender will not be served by another sanction.

No. The provisions authorizing graduated sanctions are new law and do not apply to previous sanctions ordered prior to July 1, 2013. Therefore, a sanction ordered prior to July 1 will not count as a “quick dip”, 120-day or 180-day sanction under K.S.A. 2016 Supp. 22-3716 (c)(1)(b), (c)(1)(C) or (c)(1)(D).

Yes.
In State v. Kurtz, 51 Kan.App.2d 50, 56, 340 P.3d 509 (2014), this Court of Appeals noted that the Kansas Legislature amended K.S.A. 22-3716 effective July 1, 2014. The amendment, codified at K.S.A. 2014 Supp. 22-3716(c)(12), provides: “[t]he violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced.” 51Kan.App.2dat56. The Kurtz court held this language made it clear the legislature intended for a probation violation to be governed by the law at the time the violation occurred, rather than the law at the time the probation revocation hearing is held or when the underlying crime was committed. 51Kan.App.2dat50, 56

However, the only sanction that will be available for first time probation violators is the “quick dip” jail sanction in K.S.A. 2016 Supp. 22-3716 (c)(1)(B), regardless of sanctions imposed prior to July 1, 2013.

YES-
Pursuant to K.S.A. 2016 Supp. 22-3716(b)(3)(B)(i) & (ii) permit the court or supervising officer to impose a 2-day or 3-day quick dip sanction on an offender convicted of a misdemeanor or nongrid felony. However, these offenders are NOT eligible to receive a 120-day or 180-day sanction.

K.S.A. 21-6608(d) provides that an offender shall be discharged early from probation if he or she is low risk, has paid all restitution, and is found to have been compliant with the terms of his or her probation for 12 consecutive months. K.S.A. 21-6608(d) provides the standard of review shall be “clear and convincing” evidence that denial of discharge will serve community safety interests.

Please note in State v. White 51 Kan.App.2d 1121, 320 P.3d 484 (2015) the Kansas Court of Appeals held presumptive early discharge does not apply retroactively to defendant sentence for crimes committed before July 1, 2013.

Rule 40 – On and after July 1, 2013, an offender who receives a presumptive discharge from probation pursuant to K.S.A. 2016 Supp. 21-6608(d) or is granted early discharge from postrelease supervision pursuant to K.S.A. 2016 22-3717(d)(2), and commits a felony during the time in which the offender would have been under supervision had it not been for he discharge, may be sentenced to prison for the new felony even if the sentence for such felony is presumptive nonprison. K.S.A. 2016 Supp. 21-6608(f)(2).

No. The compliance period does not have to be the initial 12-month probation period. Once an offender has been compliant for 12 consecutive months, regardless of the length of probation, presumptive discharge is applicable.

For example:

An offender with a 24 month probation sentence was not compliant for the first 6 months, but then became compliant after month six. At the end of month 18 the offender would be eligible for presumptive discharge.

K.S.A. 2013 Supp. 21-6608(d) presumptive discharge applies only to low risk offenders who meet the statutory criteria, while K.S.A. 2012 Supp. 21-6608(a) supervision termination can apply to any offender at any time. See pages 9 and 10 of HB 2170.

Yes. Presumptive discharge from probation pursuant to K.S.A. 2016 Supp. 21-6608(d) will go into effect immediately for people that have complied with probation for 12 months or more, have paid all restitution and have a risk assessment of low risk.

Also note there is a discharge mechanism for people serving postrelease supervision. Offenders on postrelease will be able to petition the Prisoner Review Board for release pursuant to K.S.A. 2016 Supp. 22-3717(d)(2), but there is no presumption of release and no mandatory time period of supervision compliance for this type of release. See K.S.A. 2016 Supp. 22-3717(d)(2).

Yes. Presumptive discharge may apply to people receiving SB 123 drug treatment, however it may not always be practical.

In order to qualify for K.S.A. 2013 Supp. 21-6608(d) presumptive discharge, an offender must be compliant with all terms of probation. Compliance would presumably include successful completion of treatment in the SB 123 program. If an offender receiving SB 123 treatment meets all other criteria of 21-6608(d) presumptive discharge, but the treatment provider recommends further or continued treatment, the “compliance” requirement of presumptive discharge may not have been met. The court may also use the treatment provider’s recommendation as a substantial and compelling reason for denying such discharge.

In addition, 21-6608(d) requires the offender to have a risk assessment of low risk, which may disqualify many offenders in the SB 123 program.

An offender with consecutive probation periods is eligible for presumptive discharge, but it will only apply to the term of probation which they are currently serving.

For example:

An offender serving the first of two consecutive probation periods may be discharged pursuant to K.S.A. 2016 Supp. 21-6608(d), but will still be required to begin service on the second period. These are two separate terms of supervision, and no compliance time from a previous sentence can be used towards compliance time in the subsequent sentence.

Yes, a hearing will be required. See K.S.A. 2016 Supp. 22-3716(b)(2). The only violation sanction that does not require a hearing is the quick dip sanction imposed by the CSO or CCO when the probationer waives the right to a hearing.

No. Felony probation sentences and subsequent revocations can include 60 days jail time pursuant to K.S.A. 2016 Supp. 21-6604(a)(3) as a condition of the probation. This provision is imposed as a sentencing provision. The graduated sanctions available in K.S.A. 2016 Supp. 22-3716(c) are imposed not for sentencing but for violations of probation and therefore should be considered separate for purposes of this question.

Technically, yes. But this scenario would seem to only apply if the offender was sent back to Kansas. Otherwise, an offender in another state is treated under the laws of the host state. The district court could assign the offender to a violation sanction in KDOC if the offender is returned to Kansas supervision. This is due to the concern that after serving a violation sanction in Kansas, the Interstate Compact may not allow the return of the offender to the other supervising state for continued supervision.

They are on postrelease supervision. See K.S.A. 22-3716(f) which states: For crimes committed on and after July 1, 2013, a felony offender whose nonprison sanction is revoked pursuant to subsection (c) or whose underlying prison term expires while serving a sanction pursuant to subsection (c)(1)(C) or (c)(1)(D) shall serve a period of postrelease supervision upon the completion of the prison portion of the underlying sentence.

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